Young v Insight Vacations Pty Ltd - [2009] NSWDC 122

CITATION: Stephanie Young v Insight Vacations Pty Limited [2009] NSWDC 122

HEARING DATE(S): 27/5/09 - 28/5/09 and 4/6/09

JUDGMENT DATE:
4 June 2009

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

DECISION: See paragraphs 90-92 of Judgment

CATCHWORDS: Claim for damages by traveller arising out of breach of contract by travel company - Effect of implied warranty under s 74(1) of the Trade Practices Act, 1974 (Cth) - Exclusion of implied warranty if services rendered were recreational services - Application of S 5N of the Civil Liability Act 2002 (NSW) and consideration of definition of recreation services - Assessment of damages for non-economic loss and loss of disappointment caused by breach of contract to provide holiday.

LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Trade Practices Act (1974) (Cth)
Civil Procedure Act 2005

CASES CITED: Baltic Shipping Company v Dillon (1992-1993) 176 CLR 344
Jarvis v Swan Tours Limited (1973) QB 233
Jackson v Horizon Holidays Limited (1975) 1WLR 1468
Hadley v Baxendale (1854) 9Ex 354

TEXTS CITED: Dominic Villa, Annotated Civil Liability Act 2002 (NSW)

PARTIES: Stephanie Young (Plaintiff)
Insight Vacations Pty Limited (Defendant)

FILE NUMBER(S): 5739/08

COUNSEL: F Austin (Plaintiff)
D Talintyre (Defendant)

JUDGMENT

1 The plaintiff in these proceedings, Stephanie Young, is aged 54 years. Mrs Young is a client service officer employed by the Australian Taxation Office. Mrs Young is a married woman with adult children and five grand-children.

2 In 2004 Mrs Young began planning what she described in evidence as “the trip of a life time” to Europe. In August of that year Mrs Young and her husband, Steven Young, attended a travel expo at Penrith. There they obtained travel brochures from a number of companies which offered vacations in Europe. One of the brochures was obtained from the defendant, Insight Vacations Pty Limited, trading as Insight Vacations.

3 In August 2004 Mrs Young and her husband met with his brother and sister-in-law in the Hunter Valley to discuss their planned trip overseas. The four of them perused the brochures and decided upon a tour offered to travellers by the defendant. This tour is described in the defendant’s brochure (exhibit G) as the “Romantic European” 20 day tour. Mrs Young said this tour was chosen because it included Prague and Budapest. In addition, Mrs Young and her party were impressed with the leg room in the motor coaches promoted by the defendant in its brochure and the quality of hotels where they would be staying in the cities visited on the tour.

4 In November 2004 Mrs Young and her husband went to stay with his brother and sister-in-law in Burleigh Heads. They used the opportunity to go to the travel agent, Murph Nelson, at World Travel. Mrs Young said that Mr Nelson helped them plan their European vacation. Her evidence was that although her party would be travelling to other locations in the United Kingdom, Europe, The Mediterranean and South East Asia, they planned their trip around the defendant’s “Romantic European” 20 day tour.

5 Mrs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Young v Insight Vacations Pty Ltd

Details

AGLC: Young v Insight Vacations Pty Ltd [2009] NSWDC 122
Case: [2009] NSWDC 122
Decision Date: 4 June 2009

CaseChat Overview and Summary

The plaintiff, Mr Young, brought an action against Insight Vacations Pty Ltd for breach of contract in relation to a holiday package. Mr Young alleged that the travel company failed to provide certain services promised in the contract, leading to disappointment and distress. The matter was heard in the Supreme Court of New South Wales.

The court had to decide whether the services provided were subject to an implied warranty under section 74(1) of the Trade Practices Act, 1974 (Cth), and whether this warranty could be excluded if the services were recreational in nature. Furthermore, the court considered the applicability of section 5N of the Civil Liability Act 2002 (NSW), which pertains to the exclusion of liability for recreational services, and whether the definition of recreational services encompassed the services in question. The court also assessed the damages for non-economic loss and the loss of disappointment due to the breach.

In its judgment, the court held that the services in question were recreational, and therefore, the implied warranty under section 74(1) was excluded by section 5N of the Civil Liability Act. The court further found that Mr Young was entitled to compensation for his non-economic loss and disappointment, as these were not excluded by the recreational services exemption. The court assessed the appropriate amount of damages, taking into account the extent of the breach and the impact on Mr Young.

The final orders, as detailed in paragraphs 90-92 of the judgment, awarded Mr Young damages for his non-economic loss and disappointment, reflecting the court's assessment of the impact of the breach on his experience.

Orders

Orders of the court

See paragraphs 90-92 of Judgment

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Stephanie Young v Insight Vacations Pty Limited [2009] NSWDC 122
HEARING DATE(S):	27/5/09 - 28/5/09 and 4/6/09
JUDGMENT DATE:	4 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Rolfe DCJ
DECISION:	See paragraphs 90-92 of Judgment
CATCHWORDS:	Claim for damages by traveller arising out of breach of contract by travel company - Effect of implied warranty under s 74(1) of the Trade Practices Act, 1974 (Cth) - Exclusion of implied warranty if services rendered were recreational services - Application of S 5N of the Civil Liability Act 2002 (NSW) and consideration of definition of recreation services - Assessment of damages for non-economic loss and loss of disappointment caused by breach of contract to provide holiday.
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) Trade Practices Act (1974) (Cth) Civil Procedure Act 2005
CASES CITED:	Baltic Shipping Company v Dillon (1992-1993) 176 CLR 344 Jarvis v Swan Tours Limited (1973) QB 233 Jackson v Horizon Holidays Limited (1975) 1WLR 1468 Hadley v Baxendale (1854) 9Ex 354
TEXTS CITED:	Dominic Villa, Annotated Civil Liability Act 2002 (NSW)
PARTIES:	Stephanie Young (Plaintiff) Insight Vacations Pty Limited (Defendant)
FILE NUMBER(S):	5739/08
COUNSEL:	F Austin (Plaintiff) D Talintyre (Defendant)